an open-source thought experiment in psychedelic law and policy

New York City Council to vote on resolution calling on New York State to pass medical cannabis law

According to a recent story in a local paper, on Wednesday February 29 the New York City Council will vote on the resolution I described in a previous post calling upon the state legislature to pass the medical cannabis bill which Assembly Member Richard Gottfried and Senator Thomas Duane (both Manhattan Democrats) have introduced.

Gottfried has introduced a medical cannabis bill every year since the 1990s. Since then states such as Arizona, Delaware, Michigan, Montana New Jersey and Rhode Island have passed their own laws. And New Yorkers think they are progressive….

NOTE: The next Council hearing is scheduled for 1:30 pm on Wednesday, February 29. The Council website currently does not show what is on the agenda. I will confirm that the issue will be on the agenda when I find out.

If you are interested in seeing a medical cannabis law pass in New York State, you should come to the hearing at which the City Council will vote on the resolution. The resolution does not actually determine anything in the state legislature, but it is a public statement of the City Council’s position and keeps the topic current in the press. If there were 50 citizens appearing to support a medical cannabis bill it would be a bigger news story. All the more if there were 100, 500, 1,000, etc.

Comments on the themes in the story

The reporter’s hook in the story seems to be the NYPD campaign of dragnetting the City for black and brown men with small amounts of cannabis on their persons, which in Orwellian Newsspeak is “crime prevention.” The reporter seems to be see some irony in the City Council proposing that there should be a medical cannabis bill when at the same time the police department acknowledged it has a policy of arresting 50,000 or so men after tricking into incriminating themselves, promised to end the policy and then [surprise – not] decided not to stop.

However I don’t see that issue as particularly relevant to the medical cannabis bill. In the real world, race, culture, nationality, sexual identity and self-definition, and mental health models may drive drug policy, but in legal world there is a different source of causation. In the legal world, decriminalization of cannabis is not part of this conversation. Since the subject at hand is calling upon the state to pass a medical cannabis bill, we are dealing with an arcane discussion of federalism and administrative procedure, not with policing procedure and individual rights.

The article quotes statements by a spokesman for the Office of National Drug Control Policy (ONDCP) which is like the President’s designated office expressing his position on drug control. There is more than enough Newspeak in these statements to last for a much longer blog post.

“We look at this as a public health issue,” explained Rafael Lemaitre, a spokesman for the ONDCP. “We believe it should go through the FDA process, because politics and ideology should be removed from decisions about medicine.”

The reality, I believe I may say plausibly, is that no one in the federal government expects ever to see anyone sponsor clinical trials of cannabis that would demonstrate to the FDA that cannabis is safe and effective, and therefore this argument is meant to say that cannabis will never be legal under federal law due to clever manipulations of that law no matter what real humans may experience subjectively.

It is an audacious statement since the federal Executive branch’s own position has always been political and ideological, consistently resorting to more and more fantastic pretextual arguments as to why cannabis can never be a medicine.

Then again – have politics and ideology EVER been removed from decisions about medicine? Um, what? Abortion, assisted suicide, immunization, sterilization, quarantine, tobacco, contraception [Tuskegee experiment, anyone?]…. Am I missing something here? The topic of psychoactive substances is inherently as political and ideological as any of those issues and has been since, for our purposes, the federal government between regulating them in 1914. (Considering that psychoactive implicates basic building blocks of the purpose, such as ego structure, perception, awareness, volition, and so on, I believe it is the most important of all of them, which is why I write this blog). In effect, the federal government is saying “I’m not the one with a problem – you’re the one with a problem!” Has anyone here been in a bad relationship? I think it’s time to break up with the federal government: the federal government has some big political and ideological problems with the idea that the unprocessed cannabis plant could be therapeutic – and it’s in denial.

Further: “In a 2009 statement, ONDCP Director R. Gil Kerlikowske wrote, “The [FDA], which studies and approves all medicines in the United States, has made very clear that the raw marijuana plant is not medicine, and any state considering medical marijuana should look very carefully at what has happened in California.”

The foregoing is actually a condensed set of perversions of the truth. The first perversion is the position that the FDA can determine what is and is not a medicine. The FDA can conclude on the basis of evidence presented to it that a particular substance may be “safe” and “effective” for treating a particular condition and so may be lawfully advertised and sold in interstate commerce, but it does not decide what is and is not a medicine. I cited to Buford Terrell’s description of this distinction in an earlier post. (It is the key to cannabis prohibition and features in the current lawsuit by Americans for Safe Access in the Court of Appeals for the Federal Circuit, described below.)

The next perversion is the implication that the federal drug control agencies have sat patiently and indulgently for forty years waiting for the potheads to get it together to present a coherent explanation as to why sick and dying people who want to use cannabis to help themselves should be allowed to do so. In 1972 Nixon rejected the expert report saying that cannabis should be decriminalized. In 1988 the DEA rejected its administrative law judge’s conclusion that cannabis should be made medically available. In 2007 the DEA rejected its administrative law judge’s conclusion that the DEA should license a second source of cannabis in the US in order to allow a clinical trial of cannabis to proceed. The most current cannabis rescheduling petition was filed by the Coalition to Reschedule Cannabis in 2002. The DEA did not issue any decision until the petitioners in April of 2011 started a lawsuit in federal court asking the court to force the DEA to issue a decision. The DEA said there was no need to hold a hearing and rejected the petition in July of 2011, after having held held the petition for eleven years and requiring that the petitioners ask for judicial assistance. Americans for Safe Access is fighting the DEA’s decision in the Court of Appeals for the Federal Circuit. The foregoing is not the good-faith conduct of public servants but the desperate efforts of tyranny to retain power.

The last truth-perversion and the one that is most relevant to the City Council vote is Kerlikowske’s suggestion that the the California experience is relevant to the proposed New York law. Beginning in June of 2010 I began describing the incredible and sickening depths of untruth to which New York City and State political officials were sinking in recklessly or willfully mischaracterizing the Duane/Gottfried bill. The New York bill is so far removed from California’s law that the only things that they have in common is that (a) they are both written in English and (b) they both refer to cannabis (“marihuana” in New York and “marijuana” in California). It is a foregone conclusion that the argument will keep coming out in the press if the NY bill looks like it could move.

We might ask, then, what is it about the “California experience” that is relevant to New York? The experience of California and the other medical cannabis states that have been allowed to go live (remember that the New Jersey governor has prevented the opening of any dispensary for as long as possible and the US Attorney General has frightened three other states into suspending their programs) shows perhaps the opposite of what the Prohibitionists want to show: those states have survived, people are treating themselves with cannabis which they acquired in the light of day as permitted under state law, and some of the municipalities are making money.